Friday, September 29, 2017

The Spanish Constitutional Tsunami: is a Spectre Haunting Europe? Guest Post by Domenico Giannino


The next 1st of October will be a pivotal moment in Spanish constitutional history because of the by now famous Catalan Llei del referèndum d'autodeterminació, which regulates the holding of a binding self-determination referendum on the independence of Catalonia.

This law is the climax of almost ten years of Catalan drift towards independence started with the massive 2010 Catalan autonomy protest. Theodore Roosevelt famously stated that “the more you know about the past, the better you are prepared for the future"; in the case of the Catalan independence referendum, the past is represented by the issues related to the Estatuto de Autonomía de Cataluña. The Catalan statute was approved by the Catalan Parliament on September 2005 with a majority of 88% (only the Spanish Popular Party voted against) and sent to the national Parliament for approval by law. The national legislative assembly strongly amended the act with the result that the Catalan statute was defined, by Professor Roberto Blanco Valdes, apocryphal and the turnout to the confirmative referendum was relatively low.

The icing on the cake was the sentence of the Spanish Constitutional Tribunal n.31/2010 on the Catalan statute, where we find everything and its opposite. Without going into too much legal detail, the restrictive interpretation of the Tribunal of large portions of the Catalan statute – approved with substantial majorities by both the Spanish and Catalan parliaments – was questionable at best. There were very sharp political reactions in Catalonia against this sentence that culminated on the 10th July 2010 in the massive autonomy protest "Som una nació. Nosaltres decidim”. In the following years – as history often repeats itself – it was again the Spanish Constitutional Tribunal who led the ‘Catalan performance’, at least from a legal point of view. In March 2014 the Constitutional Court ruled against the Declaration on the Sovereignty and Right to Decide of the People of Catalonia, recognizing – within the Spanish constitutional framework – the right to decide, which cannot be extended to self-determination. Finally, the court has ruled – on 7 September 2017 – not only to suspend the Catalan referendum law, approved by the parliament of the Generalitat of Catalonia, but also personally to warn the 948 Catalan mayors and 62 senior officials of the Generalitat that they cannot participate in the organization of the referendum.

In 2014 the Catalan government decided to carry on with the referendum transforming it in a process of citizen participation, the results of which were in favour of the independence; however the ridiculously low turnout supports the theory of pro-unity silent majority. The Catalan government these days is clearly showing its intention to go ahead with the 1-O independence referendum.

The legal aspects of the referendum are simpler than the political debate suggests, the Spanish and Catalan governments are clearly fighting a media battle where there is no room for truth. The tension between national police and demonstrators, after the arrest of some Catalan officials, shows that both governments are playing a dangerous game that can easily go out of control.  

However the ‘false truth’ of the Spanish government is supported – whether we like it or not – by strong legal and constitutional grounds.

Firstly in the Spanish legal system calling for a referendum is a competence of the central government, consequently the Catalan government did not have the constitutional power to approve the Llei del referèndum d'autodeterminació. Furthermore even if the referendum had been legal, it would have been only advisory and consultative.

Secondly in International law, even less in EU law, it is quite hard to find rational legal grounds to support this act. As underlined by the constitutional law professor Ismael Peña, this is an unprecedented event and we should not use XX century international law to address XXI century issues. In my opinion the legal system should not be used to solve political problems, a serious and fair political negotiation is the only way out from the Spanish constitutional tsunami.

The Catalan case is opening a totally new scenario in the history of Europe: it is the first time a European region – as the former Commissioner for Human Rights of the Council of Europe, Álvaro Gil-Robles, has stated – acts against the democratic constitutional order of its own State using a referendum which is unconstitutional, unilateral and not recognised by any other State. This may be one of the symptoms of a process of legal ‘glocalisation’, with the States losing their sovereign powers in favour of both supranational organisations and subnational entities. This twofold tendency has been bolstered by the effects of the ongoing economic crisis, as Napoleon has taught as, c’est l’argent qui fait la guerre.


This blog is authored by Domenico Giannino, PhD in Public Comparative Law at University of Calabria, Italy; Associate Lecturer at London Metropolitan University, UK; and Law Module leader at Kaplan International College.

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